Author Archives: Stan Jester

DeKalb County School District et al. v. Georgia State Board of Education et al. (S13Q0981)

• Video and transcript of oral arguments
• Court Briefs
• Summary of Dr Walker’s Oral Arguments
• Summary of the State’s Oral Arguments

The public sentiment to date is summarized in Judge Story’s decision, “The interest of the public in a healthy public school system outweighs the interests of board members“. On Monday, the Supreme Court of Georgia heard oral arguments on the constitutionality of the Removal Statute, O.C.G.A. § 20-2-73, based on a litany of charges. I hope you find the briefs and oral arguments as interesting as I did.
Dr. Walker asserts the Georgia Constitution does not give the General Assembly authority to create removal statute for board members, and furthermore, the statute created renders part of the constitution superfluous. Dr. Walker’s due process argument was shot down by Judge Story and the argument with giving a private 3rd party this authority is weak, so neither were the focus of this case.
Interestingly, the GSBA chimed in with a Friend of the Court brief making a couple of digs of their own at SACS. Over the years “‘indicators’ designed to define the standards have become more vague … As an example, indicator 2.2 on governance and leadership from 2007 to 2010 stated that the governing body ‘recognizes and preserves the executive, administrative, and leadership authority of the administrative head of the system.’ As of 2011, that indicator has been reworded: ‘The governing body operates responsibly and functions effectively’.” While I couldn’t agree more, GSBA is 2 years late with that statement.

Summary of Dr Walker’s Oral Arguments
Cox, representing Dr. Walker:

Board is removed as a whole without findings of individual wrong doing.
An unaccountable private 3rd party triggers the process.
No standards are set by the statute for the actual removal.
Suspension is all or nothing despite individual actions.
The standards for reinstatement are arbitrary or impossible to achieve.
The Governor makes the final decision on reinstatement despite their conflict of interest.

Justice Hines: What are your primary arguments?
Cox: 1. Violates local control of public education. 2. The statute does not meet the definition of ‘qualifications’.
Justice Hines: What is an example of a permissible qualification?
Cox: A qualification that school board members have a college degree. A qualification, to be meaningful, it has to be objective, it has to be uniform, it has to be clear and knowable and it has to be applied on an individual basis. This statute doesn’t meet any of those criteria.
Justice Benham: Are you combining, in this argument, local control and due process?
Cox: No, just qualifications.
Justice Nahmias: Can the General Assembly setup a removal process?
Cox: Yes, certainly. [I think Cox thought Nahmias said qualification and not removal process.] If the court interprets the constitution to define qualification that broadly, then what would prevent the General Assembly from passing a statute that said the Governor may replace all Supreme Court Justices?
Justice Nahmias: Article 6. I was somewhat surprised by your answer that the General Assembly can setup qualifications and then setup a removal process for it as well.
Cox: That argument could be made, but I’m not making it here. The question is this even a qualification.
Justice Melton: You’ve emphasized the private entity. Your point is not whether there is a private entity or not. Your issue, at that point, is whether there are standards.
Cox: I believe it is unconstitutional to delegate that kind of authority to a private entity to even trigger the statute.
Justice Nahmias: We have auditing. You can’t have a law that says that if an accounting firm identifies fraud, that triggers some process?
Cox: Yes, I can say that an accounting entity that finds fraud cannot trigger a process that the first step of which is to remove all of the board members of a particular entity.
Justice Nahmias: But, if it were individualized then it would be OK.
Cox:As a hypothetical matter, I don’t know.
Justice Nahmias: No one is actually removed from office until they have an individualized opportunity for a hearing.
Cox: The temporary removal effectively is a removal.
Justice Nahmias: Temporarily. And then they can apply for reinstatement.
Cox: They can apply for reinstatement, and the standard they have to meet at that point has nothing to do with whether they have committed any individual wrong doing.
Justice Benham:Could this same format be used to remove any constitutional officer in this state?
Cox: Yes.
Justice Nahmias: You don’t think that the loss of accreditation by a school system is potentially wrong doing?
Cox: First, state law doesn’t require any school system to be accredited. Second, it’s not required to be particularized.
Justice Nahmias: The permanent removal is particularized. The permanent removal is more likely than not that that individual board member will more likely create accreditation problems.
Cox: Yes. But, this is an elected constitutional official.
Justice Nahmias: That’s a different argument you’re shifting to. What’s the problem with that standard?
Cox: It sets out a requirement for hanging on to a board position that has absolutely nothing to do with that individual’s impact in that accreditation decision in the first place. It’s totally irrelevant then.
Cox: In summary …
“I believe, for you to conclude and answer the certified questions that this statute violates the Georgia Constitution in all three (3) of the respects that I have laid out. That it infringes on the voter’s right to chose an elected public board and it infringes on the guarantee of an elected public board. It does not set any qualifications for that board membership … under any reasonable definition of that word. And it clearly violates due process under any reasonable definition of due process. Thank you.”

Summary of the State’s Oral Arguments
Ritter: Representing the Governor as well as the State Board of Education. The questions in this case first ask generally whether OCGA 20-2-73 somehow violates the constitution. Then, specifically asks whether it removes management and control of a local board of education and secondly whether it exceeds the General Assembly’s authority to pass legislation governing the qualifications of members.
Justice Blackwell:Can you tell me in code section 20-2-73a1, who is an eligible member?
Ritter: Undefined in the statute, the Governor found that an ‘eligible member’ was a member who was on the board at the time the conduct that led to the potential loss of accreditation arose.
Justice Nahmias: The meaning in Section C that it … the code applies to all board of education members regardless of when they were elected or appointed.
Ritter:
I think that’s … that would be for ones in subsection C that are already presumed to have been suspended. So, they wouldn’t have been eligible in the first place.
Justice Nahmias: That’s not what it … it says this code section applies to all board members regardless of when they were elected or appointed.
Ritter: I understand. But, your honor, Justice Nahmias, we take the whole statute in para materia. The potential reinstatement or formal removal from office has extensive process. But, without getting into the due process issue, as Justice Nahmias pointed out, it plainly turns on the qualification issue of whether their actions caused the school district to potentially lose accreditation. That conduct is a type of qualification. The General Assembly, by having the power to determine who is qualified, has the power to determine who is entitled to hold office.
Justice Nahmias: And setup a removal process that’s not listed in the constitution?
Ritter: That’s true because it says that they may establish qualifications as provided by law.
Justice Nahmias: Let me ask you two (2) questions on that. One is, in the education article, there are four (4) offices that are created. The state school board, the state school Superintendent, the board of regents and the local school boards. Two (2) of them expressly give the General Assembly the authority to create qualifications and removal from office, the two appointed offices. The State School Superintendent and the local school boards just say qualifications. What are the words … and … why have the words ‘and removal’ in those other two provisions, if you say you don’t need them, qualifications implies the ability to create a removal procedure.
Ritter: Well, I’m certainly mindful of that issue. But, I can tell your honor, as yourself pointed out, there are other places where the constitution describes qualifications as an aspect of removal.
Justice Nahmias: But those are like the JQC, but that is in a provision entitled removal and talks expressly about the removal authority of the JQC.
Ritter: That is true. But, none the less, just because they specified in one place the word ‘removal’ does not mean, obviously, that they were limiting the ability to remove in other places.
Justice Nahmias: Well then what does the word … doesn’t that render the words ‘and removal from office’ in two of the four provisions of article 8 superfluous? If qualifications includes removal, then why do two of the four provisions back to back, 1-2-3-4, two of them say and removal … qualification removal, two of them say qualifications. You say the words removal are nothing.
Ritter: I can tell you, your honor, I think there are instances where there are superfluous words in the constitution.
Justice Melton: How clear are the standards by which the board members will be judged under the statute?
Ritter: They are clear enough.
Justice Melton: Do they have to be more specific than saying whether they violated the standards of this private entity?
Ritter: No, they do not.
Justice Blackwell: Counsel, what do you say to Dr. Walker’s argument that to amount to a qualification, it has to be something that’s personal and individualized?
Ritter: The statute is not punitive in nature. The statute is about protecting the schools and the children in those schools. If there is some sort of conduct, even if it’s merely negligent conduct, that would lead to the potential loss of accreditation, that is sufficient. To lead to that, it doesn’t have to be proof of wrongful conduct on the part of the school board member.
Justice Blackwell: Does it have to be personal or individualized negligent conduct?
Ritter: We would expect that it would have to be personal in the reinstatement proceeding.
Justice Melton: Does it matter if SACS standards are not fair standards?
Ritter: SACS isn’t the only accrediting body. They chose to have SACS in this case. If the school board were to hear about the dis accreditation, based on arbitrary and inappropriate conduct by SACS, it would not recommend suspension of the entire board to the Governor.
Justice Nahmias: Can you go back for a moment to the removal issue. In the judicial article, that’s the only other place in the constitution I saw that the General Assembly can provide for additional qualifications of all judges in Georgia. But, it seems like by your argument, the General Assembly could, for example, the hypothetical Mr. Cox said, the ABA said they don’t like the opinions of the court, the Chamber of Commerce says the opinions of this court are bad for business in Georgia and will create an actual harm. So they set up a process where … the exact same process for removal based on the standard of judges are not deciding cases in a way that more likely than not will be good for economic development in Georgia. Why would that not pass the test under your approach?
Ritter: I can tell you that it is the practice of this court and the law in this state that the General Assembly is given great deference and authority which I think is beyond the pale of being able to be questioned.
Justice Nahmias: What would be rational about saying the decisions of court … just like the decisions of school board members that hurt school children’s accreditation and the economic … there’s a lot in the record about the economic situation of a county if the school board losses accreditation. The decisions of a court that hurt economic development in Georgia as determined by pick some agency and therefore, the General Assembly in its wisdom, it wouldn’t be irrational to say you can remove judges who decide things that way.
Ritter: The specific answer to that question is, it is the General Assembly’s authority to make that decision to decide that if you agree it is rational for them to do that, then I would suggest that if they have the powers to decide qualifications as decided by law that indeed would fall within their authority.